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Paper No.444                12.04.2004

by B.Raman

The action of Gen.Pervez Musharraf, Pakistan's military dictator, in seizing power on October 12,1999, after having arrested Nawaz Sharif, the duly elected Prime Minister of Pakistan, was challenged by those opposed to his action before the Pakistan Supreme Court.

A week before their petition was to be taken up  by the court, Musharraf, fearing that the then Chief Justice, might not be favourably disposed towards him, ordered all the judges of the court as well as the provincial High Courts to take a new oath of office in place of the one which they had taken under the elected Government.  The purpose of the new oath  was to ensure their loyalty to him and to pre-empt any judgement unfavourable to him.

Seeing through his game, the Chief Justice Saiduzzaman Siddiqui and 13 other judges of the Supreme and High Courts  declined to take the new oath.  Musharraf sacked them and placed the Chief Justice under house arrest for 12 hours and cut off his telephone lines in order to make it impossible for the other judges to consult the Chief Justice on this matter.

According to the Pakistani media, Musharraf then told the other judges that the Chief Justice had already taken the new oath in his residence.  Believing him, the other judges took the new oath.

In a statement issued at New York on February 1, 2000, the International Lawyers Committee for Human Rights condemned the dismissal of senior Pakistani judges who refused to take an allegiance oath to the emergency provisions enshrining military rule, instead of to  Pakistan’s Constitution as laid down in the Constitution.  "The regime has removed one of Pakistan’s key safeguards against dictatorship by outlawing constitutional review of military rule," the Committee said.

The Committee added: "President Clinton should be wary of visiting Pakistan as long as Pakistan’s government undermines the independence of the judiciary and the rule of law.  A trip to Pakistan after the dismissal of these judges would put international imprimatur on  General Musharraf’s antidemocratic acts."  Despite this, Clinton visited Pakistan.

In June, 2001, Musharraf decided to take over as the President of Pakistan before going to India in July on an official visit.  He was keen that India should accord him full honours as the Head of the State of Pakistan.  He requested Mohammed Rafique Tarar, the then President, who had been elected as the President in 1998 and whose term was to expire only in 2003, to resign in order to make way for him.  Tarar refused to oblige.

Musharraf, thereupon, issued an order declaring that the office of the President stood vacated  and had himself sworn in as the President on June 17, 2001.  In declaring Tarar to have vacated his office, Musharraf used a devious device which could have occurred only to a devious mind like his.

Under the Pakistan Constitution of 1973, which is still in force, the President is elected by an electoral college consisting of the two Houses of the Federal Parliament and the elected Assemblies of the provinces.  Musharraf ruled that since the electoral college had ceased to exist due to his earlier abolition of the Federal Parliament and the provincial assemblies, its action in having elected Tarar as the President had become null and void.

In June-July, 2001, elections were held to the Assembly of Pakistan-Occupied Kashmir (POK).  The Muslim Conference led by Abdul Qayyum Khan won the election and formed the Government under Sikander Hayat Khan as the Prime Minister.  It decided to nominate Qayyum Khan for election as the President of the POK.

Musharraf pressurised Qayyum Khan not to contest and instead proposed Maj. Gen.Mohammad Anwar Khan, the then Vice-Chief of the General Staff, for election as the President as the candidate of the Muslim Conference.  The Major-General belongs to the Sudan tribe of the POK and is related to Gen.Mohammed Aziz Khan, who was then one of the two Corps Commanders in Lahore and who is since October 8, 2001, Chairman of the Joint Chiefs of Staff Committee.  When Mohammad Aziz Khan was Deputy Director-General of the  Inter-Services Intelligence (ISI) before 1999, Mohammad Anwar Khan had served under him.

Under the Pakistani electoral laws, as in force in July 2001, no public servant could contest an election while in Government service and for a period of two years after leaving Government service.  Musharraf abolished this provision in order to pave the way for the election of Anwar Khan.  Anwar Khan took premature retirement from the Army, contested the election after two days  and was declared elected as the President of the POK.

By abolishing this provision and setting this precedent, Musharraf also sought to pre-empt any constitutional or legal objections that might be raised to his contesting the election as the President while continuing to be the Chief of the Army Staff (COAS).

Since June, 2001, Musharraf had been making his determination to continue in office for another five years abundantly clear on the ground that his continuance was necessary to implement the various political, economic and other structural reforms which he claims to have undertaken.

The various options, which he got examined were:

* Continuing as President for five years from June 17, 2001, without holding any Presidential election.  This option was to be justified by the argument that under the Pakistani Constitution, the term of office of the President is five years and that when he took the oath as the President on June 17, 2001, he was automatically entitled to a five-year term.  This option was finally dropped  due to fears that such a procedure might not give him even a veneer of public acceptance and support.

* Contesting the election as the President after elections to a Federal Parliament and the new provincial Assemblies were held in October, 2002. This option too was rejected due to fears that if the political parties opposed to him managed to win the majority of seats they may not accept him as the President.

* Seeking the approval of the people in a referendum  for his continuance as the President for a full term of five years.  This is the option which he has now adopted and the referendum is to be held on April 30, 2002. Musharraf has also indicated that he would continue to hold simultaneous charge as the COAS.

The proposed referendum has been challenged before the Supreme Court and its legality  has been questioned on the following grounds:

* His last year's order in the POK case setting aside the bar on serving public servants contesting elections was illegal.  As a serving COAS, he was debarred from contesting any election.  Musharraf's argument to this is that he is not contesting any election and that he is only seeking the approval of the people for his continuing in office.

* The Pakistani Constitution provides for a referendum only for ascertaining the views of the people on important matters of state policy and not for electing/appointing important state functionaries for which specific procedures have been laid down separately.  Under these procedures, the President can be elected only by the electoral college.  The Constitution does not say that the President shall be elected either by the electoral college or by a referendum.  It clearly says that the President shall be elected by the electoral college.  In the referendum as proposed by him, nobody can contest against him.  The voters are being asked to declare him elected as President unopposed.  Musharraf's argument to this is that the leaders of many of the parties such as the Pakistan Muslim League, the Jamaat-e-Islami etc had supported Zia-ul-Haq's resort to the referendum for continuing in office and, therefore, they had no locus standi to question his adopting the same route.

Barring surprises, the approval of Musharraf's continuance in office seems now to be a foregone conclusion due to the following reasons:

* The Chief Election Commissioner, Irshad Hasan Khan,  is perceived to be his stooge.  In 2000, as a judge of the Supreme Court he had no qualms about taking the new oath of loyalty to the military regime and was rewarded by being appointed as the Chief Justice of the Supreme Court.  It was he who upheld Musharraf's seizure of power under the doctrine of necessity.

* Musharraf has been misusing the entire State machinery to ensure his success.  In all democracies, public servants are barred from participating in election campaigns and the election of any candidate, who misuses the State machinery and the services of serving government servants, is declared illegal.  All the arrangements for his campaign meetings are being made by the State authorities and civilian Government servants and Armed Forces personnel are forced to attend his meetings and campaign for him.

* He has been trying to create a split between the religious organisations and the mainstream political parties by calling off all actions takem by him against the jihadi organisations after his televised address of January 12, 2002, and to prevent the mainstream political parties from organising any boycott campaign against him.  Public meetings and other political activities by the mainstream parties are not allowed.

Since September 11, 2001, Musharraf has been even more brazen than pre-September in riding roughshod over the opinions, criticisms and opposition of the mainstream parties. By its uncritical support to him and by suddenly becoming silent on his adherence to the so-called roadmap for the restoration of a genuine and not a sham democracy, the US has created an impression in his mind, more rightly than wrongly, that it considers his continuance in power indispensable and, hence, would close its eyes to his repeated outrageous violation of democratic norms in the name of democracy.

Where does Suharto come in here, one might ask.

In the late 1960s, the USA concluded that Suharto was indispensable for preventing the march of Chinese communism in South-East Asia and for crushing the pro-Beijing Indonesian Communist Party (PKI).  It forgot all about democracy, the Bill of Rights etc and threw all its weight behind him to enable him consolidate his power.

Not only that.  The US Secret Service  and the Central Intelligence Agency (CIA) practically took over the responsibility for the physical security of Suharto and for pre-empting and helping him to crush any threat from his colleagues in the military and others to his continuance in power.  The Secret Service, the CIA and the National Security Agency (NSA) set up their largest presence in South-East Asia in Indonesia to ensure the survival of Suharto and closed their eyes to his murder of democracy and to the acts of nepotism and corruption of Suharto, his family and his cronies.  Indonesia is paying a heavy price for this since 1997.

Similarly, since September 11, 2001, Washington DC has concluded that the continuance of Musharraf in power is indispensable to crush the Al Qaeda, to prevent another September 11 in US homeland and the possibility of the terrorists getting hold of Pakistan's Weapons of Mass Destruction (WMD).

Pakistan is fast becoming the largest station of the US Secret Service, the CIA and the NSA in the Asian region---to ensure the protection of Musharraf and  his continuance in office, prevent any threats to his continuance from his colleagues and others and to safeguard the WMD assets from falling into the hands of terrorists.  In return, Musharraf is making the pretense of going along with the wishes and requirenments of the USA.

It must be said to the credit of Suharto that he was no double-dealer.  He delivered and carried out the wishes of the USA sincerely.  He massacred thousands of members of the Indonesian Communist Party, many of them ethnic Chinese, and ensured that they would never come to power and pose a threat to US interests in the region.

Musharraf, on the other hand, while making a pretense of co-operating with the US, has been  undermining on the sly the war against terrorism as evidenced by:

* His turning a blind eye to the dregs of the Al Qaeda and the Taliban taking shelter in Pakistani territory.

* The lack of vigorous action by his agencies in investigating the brutal murder of Daniel Pearl, the journalist of the Wall Street Journal, and  the hand grenade attack in the Islamabad church on March 17, 2002.

* His refusal so far to extradite to the US Sheikh Omar, the principal suspect in the Pearl murder case.

* His reluctance to ban the Harkat-ul-Mujahideen (HUM), designated by the US as a foreign terrorist organisation in October, 1997, and the Harkat-ul-Jihad-al-Islami (HUJI), both strongly suspected in the Pearl murder case.

* His suspension and reversal of all the action taken by him against the extremist elements after January 12, 2002.

In this connection, the following comments from an article published by the prestigious "Friday Times" (April 12 to 18, 2002) of Lahore are of significance:

"The government  claims to have jailed many religious and jihadi leaders and the intelligence apparatus has been asked to withdraw support to even groups fighting inside India-held Kashmir.  However, sources say the rank and file of these jihadi groups has merely been asked to lie low and let the storm blow away.  Sources also say that most of their militant cadres have gone underground. The government has softened its stance towards these groups and the seminaries (madrasas). Recently, it allowed the Jama’at-e-Islami to hold a rally even as it arrested leaders of the ARD (Alliance for Restoration of Democracy) and refused to allow the ARD to hold a rally at Lahore’s Mochi Gate.  The government has withdrawn the madrassa registration policy and the foreign students are no more required to file personal data which they were required to do until March 23.  Sources also cite the release of JI (Jamaat-e-Islami) chief, Qazi Hussain Ahmed, JUI (Jamaat-e-Ulema Islam ) chief Maulana Fazlur Rehman, Lashkar’s (Lashkar-e-Toiba)  chief, Hafiz Saeed, as part of Islamabad’s attempt to soft-pedal the religious elements."

In the case of Suharto, only Indonesia had to pay a heavy price for the ill-advised policy of the US.  In the case of Musharraf, not only Pakistan, but also Afghanistan and the USA would pay a heavy price in the form of continuing terrorism and bloodshed.

(The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, and, presently, Director, Institute For Topical Studies, Chennai. E-Mail: )